The Texas Legislative Session: bills for journalists to love and hate

The Texas Legislative Session: bills for journalists to love and hate by Alicia Calzada and Laura PratherHaynes & Boone, LLP
As the Texas legislative session begins building steam, many bills have already been filed that are of interest to journalists and news organizations. Pending legislation addresses the ability to gather news and attempts to move public notice to government websites. In the past, the Haynes and Boone media group has worked diligently to fight laws that would interfere with reporting on matters of public concern or reduce transparency about governmental functions. This session will see a continuation of these efforts.
Bills relating to newsgathering
The Public Information Act is a quintessential tool for reporters. After some government officials began conducting official business on private devices, the Legislature in 2013 passed a law clarifying that even private emails are subject to the Public Information Act if they discuss public business. Nevertheless, some government agencies found a new way to avoid public scrutiny, by claiming the agency could not mandate production of electronic communications housed on private devices over which they did not have custody and control. This session, look for a bill to address this loophole.
A Senate bill that has already been filed, SB 308, would require that records of police departments at private colleges and university be subject to the Public Information Act. The impetus for this bill comes from an incident that occurred at Rice University, in which police officers beat a suspected bicycle thief, and the beating was captured on video. When the media made Public Information Act requests related to the incident, the Rice University Police Department refused to provide the video. Despite the police officers having been commissioned by the State with full police power, the Department claimed it was not subject to the Public Information Act because they were housed at a private university. Sen. John Whitmire, D-Houston, who is the sponsor of SB 308, was reportedly infuriated by the refusal and was quoted in the Houston Chronicle as saying “if they think they don’t take taxpayer money: One, watch what I do to their budget, and two, watch what I do to their police department.”
In response to an increase in incidents where police officers arrest and harass people for doing nothing more than taking pictures—a vexing problem for journalists—HB 1035, sponsored by Rep. Eric Johnson, make clear that filming and recording a police officer does not constitute interference with police. The bill also clarifies that the crime of failure to obey a lawful order cannot be applied to “an order or direction to cease filming, recording, photographing, documenting, or observing a peace officer while the officer is engaged in the performance of official duties.” Finally, the bill makes it a crime for law enforcement officers to delete or destroy audio, photographic or video recordings without the written consent of the owner. In 2014 an Austin federal court held that a private citizen has the constitutional right to record police officers performing their official duties in public. The ruling came after the Austin police department claimed that the right to photograph or videotape police was “not recognized as a constitutional right.”
Public notice under attack
Despite the November census report finding that several Texas cities, including Laredo, McAllen, Brownsville, Waco and Texarkana, are among the worst in the nation for adoption of internet use, this session of the Legislature has already seen a bumper crop of efforts to move public notice away from independent accountability by being published in a newspaper and on its website and moved to government only websites with no verifiability or archiving by a third party. Two bills that have been filed, HB139 and HB 814 (companion bill, SB392) would allow government entities to satisfy certain public notice requirements by publishing notice on their own internet websites instead of in a newspaper of general circulation. A third bill, HB1019, would require newspapers qualified to accept public notice to have an online-only option, at a price cap of $25, and would permit government entities to exercise the online-only option to fulfill the public notice requirement.
Attorneys from Haynes and Boone will be working on behalf of journalists and news organizations on these matters, and we will report our progress throughout the session.

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